The opinion of the court was delivered by: Campbell, Chief Judge:
Defendant has moved to dismiss or transfer this cause alleging
improper venue. Assuming proper venue, defendant also moves to
transfer the cause to the District of Colorado for the
convenience of parties and witnesses, and in the interest of
justice, pursuant to 28 U.S.C. § 1404(a).
Venue in a patent infringement action is controlled by
28 U.S.C. § 1400 (b) which provides:
"(b) Any civil action for patent infringement may be
brought in the judicial district where the defendant
resides, or where the defendant has committed acts of
infringement and has a regular and established place
The parties agree that defendant does not reside in this
district. The question thus becomes whether defendant, within
this district; (a) has committed acts of infringement, and, (b)
has a regular and established place of business.
Defendant's operation of a manufacturing plant of its Battery
Division and its operation of a sales office to promote the sales
of the products of its Battery Division and, to a lesser extent
the accused filters, constitutes a regular and established place
of business within the meaning of 28 U.S.C. § 1400(b).
Defendant's salesmen continuously solicited orders for the
accused filters in this district, though the soliciting of filter
sales may have been secondary to their efforts on behalf of the
products of the Battery Division. These salesmen were equipped
with samples of the accused filters for demonstration or display
to potential customers. They were also supplied with catalogs and
brochures advertising the accused filters. These activities are
sufficient to amount to "infringing sales" within the meaning of
28 U.S.C. § 1400(b), even though the sales were not completed in
the district but had to be forwarded to St. Paul, Minnesota, and
Longmont, Colorado for final acceptance. (Union Asbestos and
Rubber Co. v. Evans Products Co., 7th Cir., 328 F.2d 949.)
Defendant's motion to dismiss or transfer for improper venue is
I find no reason to disturb plaintiff's choice of forum and
grant defendant's motion to transfer this case pursuant to
28 U.S.C. § 1404(a) to the District of Colorado. On the contrary, I
believe the interest of justice demands that the case be tried
here. There are presently six cases consolidated before me
involving an alleged infringement of the same patent. It would be
absurd to require plaintiffs to try four or five cases here and
one or two similar suits elsewhere.
The motion of defendant to transfer this case to the District
of Colorado is denied.
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